Appeal from decision of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, dismissing former police commissioner's complaint, under 42 U.S.C. § § 1981, 1983, 1985, 1986, of racial discrimination during employment and of retaliatory discharge on grounds of res judicata. Affirmed.

Oakes, Newman, and Pierce, Circuit Judges.

Author: Oakes

OAKES, Circuit Judge

Walter D. Kirkland, former Police Commissioner of the City of Peekskill ("the City"), appeals from a judgment of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, granting the City, various Peekskill officials, and a consultant formerly employed by the City, dismissal of Kirkland's complaint on res judicata grounds. See Kirkland v. City of Peekskill, 651 F. Supp. 1225 (S.D.N.Y. 1987). Kirkland's amended complaint alleged denial of his constitutional and statutory rights, privileges and immunities in violation of the Fourteenth Amendment under 42 U.S.C. § § 1981, 1983, 1985 and 1986, denial of his constitutional rights under the Constitution of the State of New York, denial of rights to equal opportunity and to freedom from retaliation in violation of the Human Rights Law of the State of New York, N.Y. Exec. Law § § 290-301 (McKinney 1982), and libel and slander by specific acts of two of the defendants and by the conspiratorial acts of the defendant class.

Kirkland, a black, claimed that while he was Police Commissioner he was continuously subject to willful and purposeful acts of harassment, was subject to false charges regarding his work performance and duties which were designed to effectuate his discharge, and that he was wrongfully terminated and replaced by a less qualified white male. In addition, he alleged that he was treated differently from white city officials similarly situated, that he was subjected to verbal abuse which generated untrue and unfounded rumors about him, and that in carrying out his supervisory duties he was repeatedly countermanded or overruled by the Common Council, the Mayor, the City Manager and other city officials in a deliberate effort first to discriminate and then to retaliate against him. Finally, he alleged that the defendants engaged in a pattern and practice of regular harassment designed to force his involuntary resignation or discharge.

The district court held that Kirkland's federal court action was precluded as res judicata on two grounds: first, that under University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986), the determination of the New York State Division of Human Rights (NYSDHR) that Kirkland's discrimination claim lacked merit barred the action, 651 F. Supp. at 1228-31, and second, that state court review of the adverse NYSDHR determination was also a bar, 651 F. Supp. at 1231, under Mitchell v. National Broadcasting Co., 553 F.2d 265, 273-74 (2d Cir. 1977); see also Fay v. South Colonie Central School District, 802 F.2d 21, 28 (2d Cir. 1986). See generally Migra v. Warren City School District board of Education, 465 U.S. 75, 77 n.1, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). We affirm.

The procedural history of this case must be recounted in order to understand the issues. In September 1983 Kirkland had filed an earlier complaint in United States District Court under 42 U.S.C. § § 1983, 1985, 1986, and 2000e (Title VII) alleging that the City of Peekskill and various city officials had discriminated against him because of his race and color by inducing him to accept employment with a false representation of salary, by requiring him alone among city department heads to relocate to Peekskill, denying him financial assistance for the move, and by denying him certain salary increases to which he was entitled. In January 1984 he filed a similar complain with the NYSDHR. Then, in May 1984, he filed a second complaint with the NYSDHR alleging that because of his prior complaints City officials had launched a retaliatory campaign of harassment against him-undermining his authority in the department, embarrassing and discrediting him by giving misleading information to the press about a prisoner's suicide while in custody, and hiring a consultant named as a defendant in this case, Sal Prezioso, to investigate him. Against Prezioso, Kirkland alleged the conveyance of false and derogatory information to a prospective employer.

In June 1984 Kirkland filed the present civil rights action in United States District Court for the Southern District of New York based on 42 U.S.C. § § 1981, 1983, 1985, and 1986. His amended complaint set forth substantially the same allegations of discrimination and retaliation as did his second NYSDHR complaint.

In October 1984 Judge Lasker dismissed without prejudice Kirkland's first federal complaint, filed in September 1983, on the basis that he had failed to exhaust the EEOC and state administrative remedies which are prerequisite to a Title VII action, and that his section 1983 complaints failed to state a claim on which relief could be granted. See Kirkland v. Bianco, 595 F. Supp. 797 (S.D.N.Y. 1984). Kirkland then filed a third NYSDHR complaint, also in October 1984, again charging that the City and its officials had carried on a campaign of harassment against him and had engaged in a conspiracy to deny him the right to continuing employment. In the course of investigating Kirkland's three complaints, the Division received sworn statements on Kirkland's behalf, met with Kirkland and his attorney to take his testimony concerning his allegations, contacted witnesses suggested by him, reviewed explanations provided by the City and by Kirkland of certain specific complaints, and examined portions of transcripts of depositions taken in connection with his federal actions and portions of the trial transcript from the hearing held in federal district court on his section 1984 application for injunctive relief.

On February 28, 1986, the NYSDHR entered a Determination and Order After Investigation dismissing all three of Kirkland's complaints on grounds that the investigation had found no probable cause to believe that the City of Peekskill and its officials had engaged in the unlawful discriminatory practices which he had alleged. The Determination, after noting that Kirkland's charges related to employment discrimination because of "race, color, and retaliation " (emphasis added), stated:

A review of the selection process for the successor as police commissioner, did not reveal a pattern of discrimination against the complainant as another black was offered the position at an increase in pay, but declined it. The suicide issue appears to be one of a situation where the city officials were attempting to mitigate the negative publicity and not as a conspiracy to get even with the Complainant. In regard to the opportunity to work under Section 211 of the Retirement and Social Security Law, there appears to have been discretionary judgments made on the part of those city officials in applying said law to both Mr. Kirkland and others that were not based on race and color considerations.

A further review was made of the residency issue which revealed that other officials such as Mr. Kirkland had to follow such requirement [before it] had been repealed. The white that the Complainant alluded to was officially hired in his certified capacity after said law had been repealed. A review of the hiring and pay level patterns of other departments within the respondent city's administration did not reveal a pattern of discrimination based upon race and color. An analysis of the records separately and as a whole do not support the Complainant's charges of discrimination.

Kirkland then instituted an Article 78 proceeding under N.Y. Civ. Prac. L. & R. § § 7801-7806 (McKinney 1981) to review the NYSDHR's dismissal of his complaints. The Supreme Court of the State of New York dismissed Kirkland's petition for review on August 8, 1986. Kirkland appealed to the Appellate Division, Second Department; ...

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